By: Jennifer Hocking
PDF Version: The Keewatin Case: “Taking up” Lands under Treaty 3
Case commented on: Grassy Narrows First Nation v Ontario (Natural Resources), 2014 SCC 48
On July 11, 2014, the Supreme Court of Canada issued its decision in the Grassy Narrows case (also known as Keewatin). The Court held that the province of Ontario has the power to “take up” lands surrendered under Treaty 3 so as to limit the Ojibway First Nation’s hunting and fishing rights within the Keewatin area of Treaty 3 in Northwestern Ontario. Based on the Court’s decision in Mikisew, this power is subject to the duty to consult, and, if appropriate, accommodate, First Nations interests (Mikisew Cree First Nation v Canada (Minister of Canadian Heritage), 2005 SCC 69). This duty is grounded in the honour of the Crown and binds the Province of Ontario in the exercise of the Crown’s powers (Keewatin at paras 50-51). A potential action for treaty infringement will arise if the taking up leaves the First Nation with no meaningful right to hunt, fish or trap in the territories over which they traditionally hunted, fished, and trapped (Keewatin at para 52). In cases where the taking up of lands by Ontario constitutes an infringement of treaty rights, an analysis based on section 35 of the Constitution Act, 1982 and the Sparrow and Badger decisions will determine whether the infringement is justified (R. v Sparrow, [1990] 1 SCR 1075; R. v. Badger, [1996] 1 SCR 771.) The doctrine of interjurisdictional immunity does not preclude the Province from justifiably infringing treaty rights (Tsilhqot’in First Nation v British Columbia, 2014 SCC 44, and for an earlier post on the Court’s handling of interjurisdictional immunity in Tsilhqot’in see here).